In a recent divorce case, Parnes v. Parnes, 80 A.D.3d 948, 915 N.Y.S.2d 345, 2011 Slip Op. 00136 (N.Y. Sup. Ct. App. Div. 3rd Dept. 2011), it was held that a husband's carelessness with his email password did not waive attorney-client privilege.
The husband had set up a separate email account to communicate with his attorney once he started to have marital problems and needed legal advice. However, he carelessly left a page from one of the printed emails which was found by the wife.
After making this discovery, she searched through his desk and found a note that he had made regarding his email account and password. The wife gained access to the email account, printed off the emails and took them to her attorney.
The trail court disqualified the wife's attorney for failing to notify defendant's attorney of the discovery of the emails. On appeal the court ruled that the trial court abused its discretion in disqualifying the wife's attorney and found that although careless, the husband did not waive privilege by leaving the note with his username and password where she could find it. However, the privilege as to the one printed page was waived. Finally the court noted that the trial court properly quashed the subpoena of the husband's attorney.
This case shows that the client does need to take reasonable measures to ensure that communications are deemed confidential; however, these steps do not need to be too extreme, like constant changing of passwords or setting up special anti hacking software.
The main requirement is that a separate password protected email account be set up to communicate with their lawyer and avoid disclosure of that password, log off the email and not allow anyone else access to the account.
The password information however should be kept in a secure location as the Courts may not always be as forgiving as they were in this case.